Last edited: 26 april 2018
In this MA (except where the context otherwise requires):
Anti-Corruption Laws means the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business (and any other applicable anti-corruption legislation, guidelines and industry standards from time-to-time in force in a relevant jurisdiction);
Customer means the customer of D&B on whose behalf this MA has been signed or electronically accepted (as applicable);
Customer Affiliate means (i) any subsidiary, holding company or a subsidiary of a holding company of the Customer and (ii) any entity directly or indirectly controlled by, controlling, or under common control with the Customer;
Customer Data means any information that Customer provides to D&B (which may include personal data);
D&B means DUN & BRADSTREET BV, Montevideo Offices, Otto Reuchlinweg 1032, 3072 MD Rotterdam, Netherlands Tel: +31 (0)10 710 94 00 Fax: +31 (0)10 710 94 01;
Effective Date means the date (i) this MA is signed on behalf of Customer, or (ii) if entered into electronically the date on which Customer signifies its acceptance of this MA in accordance with the procedures specified from time to time by D&B;
Information means all information supplied by D&B to Customer from time to time via the Services and/or Software and pursuant to an Order;
Insolvency Event means (i) if a party is being declared bankrupt, applying for a suspension of payments or petitioning for application of the debt restructuring provision referred to in the Dutch Bankruptcy Act and for any other relevant law, or, to the extent applicable, steps are taken to put a party into administration, propose or enter into any arrangement, scheme, moratorium, compromise or composition with that party’s creditors, take any other steps to enter insolvency proceedings and/or wind up that party, (ii) if a party shall be unable to pay its debts, (iii) if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any material part of the business or assets of a party; (iv) if a meeting is convened for the purpose of considering a resolution, or other steps are taken for the winding up of any party (otherwise than for the purpose of an amalgamation or reconstruction) or for the making of an administration order or other appointment of an administrator in respect of a party, or any such order or appointment is made or effective resolution is passed to wind up a party;
Intellectual Property Rights means (a) rights in, and in relation to, any patents, designs, design rights, trademarks, trade and business names (including all goodwill associated therewith), copyright, moral rights, trade secrets, database rights, domain names, topography rights and utility models, and including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; and (b) all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may subsist anywhere in the world;
Order means a valid order for Information, Services and/or Software which has been accepted by D&B in accordance with the terms of this MA;
Privacy Laws means the Directive 95/46/EC (Data Protection) (and any other applicable data protection legislation, guidelines and industry standards from time-to-time in force in a relevant jurisdiction, relating to the use and processing of personal data in that jurisdiction);
Processor means a third party processor appointed by Customer;
Services means the business information services (which may include the supply of Information and/or Software) supplied to Customer from time to time by D&B pursuant to an Order;
Software means computer programs or applications (including those accessed remotely) in object code only, documentation and media supplied to Customer from time to time by D&B pursuant to an Order;
Territories means those countries or regions identified in a particular Order;
Users means the employees and contractors of Customer who access and/or use the Information, Services and/or Software on Customer’s behalf. For the purpose of this definition, “contractor” means any person not an employee of Customer who performs the functions of an employee for Customer on a temporary basis.
2.1. No obligation to furnish or pay for any Information, Service or Software arises under this MA until D&B accepts the applicable Order, either (i) in writing (by signature of an authorized D&B representative or delivery of a D&B invoice to Customer in connection with such Order) or, (ii) electronically in accordance with the electronic acceptance procedures specified from time to time by D&B.
2.2. All Orders are, from the Effective Date of this MA, subject to the terms of this MA, and the terms of all such Orders are by reference incorporated in this MA. All Information, Services and Software will be supplied in accordance with and subject to the terms of this MA and the applicable Order.
3.1. Any Customer Affiliate may place Orders with D&B by submitting an Order to D&B which Order shall be governed by the terms set out in the Order and this MA.
3.2. Where a Customer Affiliate places an Order, the Customer Affiliate shall be regarded as the Customer for the purposes of that Order and this MA and all references in that Order and this MA to the Customer shall accordingly be construed as referring to the relevant Customer Affiliate.
3.3. Where Customer places an Order on behalf of a Customer Affiliate the Customer hereby represents and warrants that (i) it has the authority to bind the Customer Affiliate to the terms of that Order and this MA and (ii) it remains liable to D&B for any failure by the Customer Affiliate to comply fully with, or in connection with any breach by the Customer Affiliate of, the terms of that Order Page 2 of 4 and/or this MA.
4. Scope of licenses in an order
4.1. Upon acceptance of an Order by D&B and subject to the terms of this MA, D&B will grant Customer a non-exclusive, limited, personal, revocable licence for the time period, and upon the terms set out in an Order for such number of Users as are specified in the relevant Order to access and/or use the Information, Services and/or Software supplied pursuant to that Order. Unless expressly permitted in an Order, Customer may not sub-licence in whole or in part or grant any rights in or to the Information, Services or Software to any other party.
4.2. Information, Services and Software are licensed to Customer for its internal use only. Customer will not make available or permit any other party to access or use any of the Information, Services or Software in whole or in part, whether directly or indirectly, in any media; or use or permit the use of Information, Services or Software (i) to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others), (ii) to prepare any comparison to other information databases that is or will be provided to third parties, or (iii) in connection with providing advice or recommendations to third parties.
4.3. Customer will not voluntarily produce any Information in legal proceedings without D&B’s prior written consent. Where Customer receives a subpoena, summons, warrant or governmental order requiring it to produce any Information in legal proceedings, the Customer shall (i) promptly notify D&B with details of the requirement and the Information it intends to produce, and (ii) take all reasonable steps (a) to minimize the Information produced and (b) to obtain written confidentiality undertakings in its favour with respect to any Information produced.
4.4. Each Order placed by Customer shall identify the Territories in which Customer is permitted to access and/or use the Information, Services and Software supplied pursuant to that Order. Customer agrees that it shall (and shall procure that its Users shall) only access and/or use the Information, Services and Software at the locations specified in that Order to support its business operations in the Territories. Customer shall not set up or share any user ID’s, passwords or Information with persons located outside the Territories.
4.5. Customer will not (i) attempt to access, use, modify, copy, reverse engineer, or otherwise derive the source code of Software, or (ii) copy, download, upload or in any other way reproduce Information or Software, except as expressly permitted by this MA or an applicable Order.
4.6. On not more than two (2) occasions in any twelve (12) month period, or such further occasions as may be required by applicable laws, and on reasonable notice and during normal business hours, Customer will permit (and where applicable will procure that its Processor will permit) D&B to inspect the locations at, or computer systems on which, Information and Software are used, stored or transmitted. D&B will limit any inspection to the extent reasonably necessary to confirm compliance with the terms of this MA, relevant Orders and applicable laws. If required by Customer D&B will enter into a confidentiality agreement (in a form reasonably acceptable to D&B) in respect of any information that its representative may incidentally acquire while carrying out an inspection.
4.7. With the prior written consent of D&B (which may be given by email), Customer may engage a Processor to host and/or process Information provided that Customer has a valid written agreement with the Processor (“Processor Agreement”) that stipulates that (a) the Processor’s access to and use of the Information shall be limited solely to the performance of specific services for Customer and the Processor may not copy or use the Information for any other purpose, (b) the Information is the property of D&B and may not be disclosed or distributed by the Processor to any other party, (c) upon the earlier of termination of Customer’s agreement with Processor or the termination or expiry of this MA or all applicable Orders, the Processor shall return the Information to D&B or certify its destruction to D&B, (d) Customer acknowledges that Customer is the “data controller” and that the Processor is the “data processor” of the Information for the purposes of applicable Privacy Laws, and (e) that Processor will comply with any applicable Privacy Laws. Customer (i) shall be responsible for Processor’s compliance with the Processor Agreement and (ii) shall indemnify and keep indemnified D&B against any claims that arise by virtue of the Processor’s breach of or failure to comply with the terms of the Processor Agreement. Such Processors may not use Information for the purpose of making credit, marketing or supply decisions on Customer’s behalf. If Customer requests and D&B approves the use of a Processor at a location outside The Netherlands then D&B reserves the right at its sole discretion to charge Customer, in addition to the fees payable under the applicable Order, a further 5% of such fees (which shall be payable to D&B prior to the appointment of such Processor).
5. Compliance with laws
5.1. Customer agrees that it will only use Information, Services or Software in compliance with all applicable laws, regulations and directives (including without limitation applicable Privacy Laws, Anti-Corruption Laws, legislation and regulations regarding anti-spam, export control, marketing by means of electronic communications services, customer solicitation, consumer protection and consumer credit).
5.2. In making the Information, Services or Software available to the Customer, D&B will comply with all applicable laws, regulations and directives (including without limitation applicable Privacy Laws, Anti-Corruption Laws, legislation and regulations regarding anti-spam, export control, marketing by means of electronic communications services, customer solicitation, consumer protection and consumer credit).
5.3. Customer will not use any Service, Information or Software to engage in any unfair or deceptive practice or in connection with any criminal activity.
5.4. Customer will not use Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. If Customer intends to use Information to assess the financial standing of individuals for business purposes, then Customer shall notify individuals of this in advance (and where required, obtain consent) and shall make information readily available to such individual as to which credit reference agencies Customer has used.
6. DUNS® numbers
DUNS ® Numbers are unique numeric serial numbers which identify a business and which are proprietary to and controlled by D&B. D&B hereby grants Customer a non-exclusive perpetual limited licence to use DUNS® Numbers (excluding linkage DUNS® Numbers) solely for identification purposes and only for Customer’s internal business use. Where practicable, Customer will refer to the number as a “DUNS® Number” and shall state that “DUNS® is a registered trademark of Dun & Bradstreet”.
7.1. Unless stipulated otherwise in a relevant Order, Customer will pay all fees due to D&B (together with any applicable VAT) for each Order within thirty (30) days of the relevant invoice date.
7.2. A late payment charge and interest may be applied in accordance with Directive 2011/7/EU (Late Payments) to any outstanding and undisputed fees due from Customer to D&B until paid. Without prejudice to any other rights or remedies of D&B under this MA, an applicable Order or at law, if any fees remain unpaid (i) for more than fifteen (15) days beyond their due date D&B may upon giving Customer not less than forty-eight (48) hours’ notice (email is permitted) suspend access to, and/or use of, the Information, Services and/or Software to which the outstanding fees relate until paid, and/or (ii) for more than thirty (30) days beyond their due date (a) D&B may (if applicable) cancel a relevant installment payment plan without prior notice whereupon all fees due shall become immediately payable in full and/or (b) D&B may upon giving Customer not less than forty-eight (48) hours’ written notice cancel the Order to which the outstanding fees relate.
7.3. Prices and product descriptions for specific Information, Services or Software shall be as specified in the relevant Order, or, if not specified in the Order, then the applicable pricing shall be those set and published by D&B from time to time. For “pay-as-you-go” Orders, D&B reserves the right to revise its pricing and product descriptions at any time subject to giving Customer not less than thirty (30) days’ notice of any applicable revisions.
7.4. If Customer exceeds the permitted usage in an Order, Customer will pay D&B for such excess usage at the rate specified in the relevant Order (or, if not specified in the Order, then at the premium “pay-as-you-go” rate set by D&B from time to time).
8. Intellectual property rights
8.1. Customer acknowledges that the Information and Software are proprietary to D&B and may include copyrighted works, trade secrets, patented or patentable inventions, databases or other materials created by D&B at great effort and expense. Nothing in this MA shall be deemed or construed as an assignment or transfer of legal interest by D&B to Customer of any Intellectual Property Rights which are and shall at all times remain D&B’s property. D&B retains all Intellectual Property Rights in the Services and Customer obtains only such rights as are explicitly granted in this MA. Customer will not contest the validity of, or D&B’s Intellectual Property Rights in or ownership of, the Information or Software in any way. Customer will reproduce D&B’s copyright and proprietary rights legend on all copies of Information and Software.
8.2. Neither party will use the trade names, trademarks or service marks or other intellectual property of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party. Customer shall not disclose the negotiated pricing or terms of this MA, or any Order, to any third party (save where it is required to do so by a regulatory or governmental body in which case it shall take all reasonable steps to minimize such disclosure and to obtain written confidentiality undertakings in its favour with respect to such disclosure).
8.3. D&B will treat all information that Customer designates in writing to be confidential in the same manner as D&B treats its own confidential information; provided that (i) D&B may share such information with its employees and third party service providers with a need to know in order to fulfill its obligations pursuant to this MA or an Order and in furtherance of the provision of Services, provided that such employees and service providers are subject to confidentiality obligations substantially as restrictive as those set forth in this paragraph and (ii) D&B assumes responsibility for such employees and third party service providers use of such information. Customer represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to D&B. D&B agrees not to transfer, disclose, sell or otherwise distribute such information in the form supplied by Customer to any third parties without Customer’s consent, unless D&B is required by law to do so. Such confidential information shall not include information that (i) is or becomes a part of the public domain through no act or omission of D&B; (ii) was in D&B’s lawful Page 3 of 4 possession prior to Customer’s disclosure to D&B; (iii) is lawfully disclosed to D&B by a third-party with the right to disclose such information without restriction; or (iv) is independently developed by D&B without use of or reference to the confidential information.
8.4. D&B warrants to Customer that (i) it has the right to grant the licence at paragraph 4.1 and (ii) to D&B’s knowledge, the Information and Software, when used in accordance with this MA, do not violate any existing third party Intellectual Property Rights in the Territories, as at the effective date of the applicable Order. The foregoing warranty does not apply to the extent Customer is not using the most up to date Software version, or modifies the Information or Software in any way, or combines the Information or Software with material not supplied by D&B.
8.5. Customer shall implement and maintain security measures that effectively restrict access to the Information and Software only to authorized Users with a need to know, and protects the Information and Software from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply D&B with a description of such security measures at D&B’s request. In the event of an actual or suspected breach of such security measures, Customer shall provide D&B with prompt (but in no event later than forty-eight (48) hours after becoming aware) written notice of any security incident that involves, or which Customer reasonably believes involves, the unauthorized access, use or disclosure of Information or Software.
9. Customer data and personal data
9.1. In this section “data controller”, “data processor”, “data subject”, “personal data” and to “process” have the meanings given to them in the Directive 95/46/EC (Data Protection).
9.2. From time to time Customer may, at its discretion, provide Customer Data to D&B. Where Customer Data is provided to enable D&B to fulfill its obligations under an applicable Order, Customer grants D&B a limited non-exclusive revocable royalty free licence to use such Customer Data solely for the purpose(s) specified in an applicable Order. Where Customer Data is provided to D&B for the additional purpose of validating and/or enhancing D&B’s business information services, Customer grants D&B a non-exclusive royalty free licence to use Customer Data for that purpose (D&B will not disclose the origin of Customer Data unless required by law).
9.3. Customer represents and warrants that (i) it has all necessary legal rights, title, consents and authority to provide Customer Data to D&B and (ii) any Customer Data which consists of or includes personal data about the financial standing of individuals has been obtained on terms that include a clear and prominent notice to its clients explaining that: (1) Customer may provide information about its clients’ accounts and identity to credit reference agencies and that such clients’ expressly consent to this; and (2) the credit reference agency may retain and use such information in conjunction with other information that it obtains in credit reference services that it provides to its other clients.
9.4. Customer is the data controller and D&B is the data processor with regard to any Customer supplied personal data.
9.5. D&B will only act on instructions from Customer regarding the processing of any Customer supplied personal data, and will ensure that appropriate technical measures (including the use of encryption) and organizational measures are taken to avoid unauthorized or unlawful processing of such personal data and against accidental loss or destruction of or damage to such personal data (including adequate back-up and disaster recovery systems).
9.6. Subject to paragraph 9.4 above, D&B will not process Customer supplied personal data for any purposes other than for the purpose(s) specified in an applicable Order, and will not disclose such personal data to any third party unless requested to do so by Customer or required by law. Where disclosure is required by law, D&B will (to the extent permitted by law) inform Customer in advance of making the disclosure and will co-operate with Customer to limit the scope of the disclosure to what is strictly required by law. Without prejudice to the generality of this paragraph 9.6, the parties will co-operate and assist each other in allowing data subjects to exercise their rights to access their personal data to the extent permissible and necessary under applicable Privacy Laws, and in circumstances where a party’s consent is required, such consent will not be unreasonably withheld or delayed.
9.7. Where Customer (including EEA-based data controller) provides EEA personal data to D&B (as an EEA-based data processor), and D&B needs to process such personal data in a country outside of the EEA in order to perform the Services, D&B and its non-EEA sub-processors shall (where required) only process such personal data in your name and on your behalf in accordance with an EU approved data transfer mechanism.
9.8. D&B will promptly carry out any request from Customer requiring it to amend, transfer or delete all or any part of Customer supplied personal data.
9.9. D&B will take reasonable steps to ensure the reliability of any employees who have access to Customer supplied personal data, including ensuring that all such employees have received training in applicable Privacy Laws. D&B will limit access to the Customer supplied personal data (including when in a test environment) to those of its employees who have a business need for access.
9.10. D&B will permit Customer to take reasonable steps, and on reasonable notice and during normal business hours, at Customer’s cost to monitor compliance by D&B with its obligations under this paragraph 9, including by inspecting D&B’s data processing facilities, procedures and documentation (limited to a maximum of two (2) inspections in any twelve (12) month period, or such further occasions as may be required by applicable laws). Customer hereby agrees (i) to limit any inspection to the extent reasonably necessary to confirm such compliance, and (ii) if required by D&B Customer will enter into a confidentiality agreement (in a form reasonably acceptable to Customer) in respect of any information that its representative may incidentally acquire while carrying out an inspection, and (iii) that Customer personnel shall comply with all D&B’s security policies at the relevant D&B locations and shall always be accompanied by a representative of D&B, and (iv) to indemnify D&B against any loss or damage to D&B arising from the negligence of Customer’s personnel whilst such personnel are carrying out the activities described in this paragraph 9.10.
9.11. D&B will notify Customer immediately if D&B receives any enquiry or complaint from a local data protection regulator or data subject about the processing of their personal data in relation to Customer supplied personal data. D&B will co-operate with Customer to permit it to respond to the enquiry or complaint.
9.12. If D&B becomes aware of the loss or compromise of, or any damage to, any Customer supplied personal data which it is processing, D&B will: (a) promptly notify Customer of the details of the incident; (b) promptly initiate a full investigation into the circumstances surrounding the incident and make any reports of notes of the investigation available to Customer; and (c) fully co-operate with Customer’s investigation and at Customer’s cost provide such reasonable assistance requested by Customer in order for Customer to investigate the incident.
10.1. This MA will continue in full force and effect unless and until terminated in accordance with this paragraph 10. Orders will continue in full force and effect for the licence period specified in the applicable Order unless and until terminated in accordance with the terms of that Order or this paragraph 10.
10.2. Without prejudice to the rights available to D&B in paragraph 7.2, in the event of a breach by Customer (or its Processor) of paragraphs 4, 5, 8 or 9 of this MA, D&B may immediately suspend the Services and/or the use by Customer of any Information or Software without prior notice, whereupon it shall promptly notify Customer (email is permitted) of such suspension and investigate the breach. If such breach is incapable of remedy (to D&B’s reasonable satisfaction), D&B shall promptly notify Customer (email is permitted) of its findings and D&B may at its discretion terminate the applicable Order and/or this MA upon giving Customer not less than seven (7) days written notice. If such breach is capable of remedy, D&B shall promptly notify Customer in writing of its findings and (i) if the breach is remedied (to D&B’s reasonable satisfaction) within seven (7) days of D&B giving such notice to Customer, D&B shall promptly reinstate the Services and permit Customer to resume using the Information and/or Software, or (ii) if such breach is not so remedied, D&B may by giving Customer written notice immediately terminate the affected Order(s) and/or this MA.
10.3. In the event of a breach by either party of any term of this MA or an Order not covered by paragraphs 7.2 or 10.2 above, and such breach is incapable of remedy, the non-breaching party may at its discretion terminate the affected Order and/or this MA upon giving the breaching party not less than seven (7) days written notice. If such breach is capable of remedy, the non-breaching party shall promptly notify the breaching party of the acts required to remedy the breach and if the breaching party fails to remedy the breach within thirty (30) days of receiving such notice, the non-breaching party may at its discretion immediately terminate the affected Order and/or this MA.
10.4. Either party may terminate this MA and any applicable Orders immediately by notice in writing if the other party suffers an Insolvency Event.
10.5. Termination of this MA will result in the immediate cancellation of all Orders. Either party may terminate this MA by written notice at such time as there are no active Orders by giving not less than thirty (30) days written notice to the other party.
10.6. Upon expiry or termination of this MA or a relevant Order (or upon receipt of Software or Information that is intended to supersede previously obtained Software or Information), unless D&B and Customer agree otherwise in writing, Customer will immediately delete or destroy all originals and copies of the Information and/or Software, as applicable, and upon request, provide D&B with certification thereof. Notwithstanding the aforesaid, Customer may retain a single copy of the Information (but not the Software) for regulatory compliance and archive purposes, provided always that such retained copy may not be used for any commercial purpose.
10.7. If, without D&B’s written permission or as otherwise permitted hereunder, Customer continues after expiry or termination of an Order or this MA to access or use Services, Information and/or Software the subject of an expired or terminated Order or this MA (as applicable), in addition to any other remedies available to D&B, Customer will be liable to pay D&B for the Services, Information and/or Software Customer has continued to access and/or use at the premium “pay-as-you-go” rate set by D&B from time to time and on such terms as to payment as D&B shall specify.
10.8. The exercise by D&B of any rights of suspension or termination under this paragraph 10 shall be without prejudice to any other rights or remedies which D&B has under this MA, an applicable Order or at law. Without prejudice to any other rights or remedies that D&B may have, Customer acknowledges and agrees that damages alone may not be an adequate remedy for any breach of the terms of paragraphs 4, 5 or 8 of this MA by Customer, and accordingly, D&B shall be entitled to the remedies of an injunction or other equitable relief for any Page 4 of 4 threatened or actual breach of paragraphs 4, 5 or 8 of this MA by Customer.
10.9. Any provisions set forth in this MA which by their nature are intended to survive termination of this MA will be deemed to survive termination of this MA.
11.1. Though D&B uses extensive procedures to keep its database current and to promote data accuracy Customer acknowledges that the Information may contain a degree of error. Customer is responsible for determining whether Information supplied by D&B is sufficient for Customer’s use and Customer shall use its own skill and judgment when relying upon the Information.
11.2. OTHER THAN AS EXPLICITLY STATED IN THIS MA OR AN APPLICABLE ORDER, (i) ALL INFORMATION, SERVICES OR SOFTWARE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, (ii) D&B DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, SATISFACTORY QUALITY, CONFORMITY WITH DESCRIPTION OR FITNESS FOR A PARTICULAR PURPOSE, (iii) D&B DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE, OR D&B’S CONDUCT IN PROCURING, COMPILING AND INTERPRETING SERVICES.
12. Limitation of liability
12.1. Each party’s liability to the other party for death or personal injury resulting from its own or that of its employees’, agents’ or subcontractors’ negligence, or for fraudulent misrepresentation, shall not be limited.
12.2. EXCEPT FOR CLAIMS ARISING OUT OF A BREACH OF PARAGRAPHS 4, 5, 8 OR 9 OF THIS MA, THE AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE (INCLUDING IN EACH CASE NEGLIGENCE), (i) FOR CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY CUSTOMER TO D&B PURSUANT TO SUCH ORDER OR EURO€20,000 WHICHEVER IS THE GREATER, OR, (ii) FOR D&B, WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO D&B BY CUSTOMER PURSUANT TO SUCH ORDER OR EURO€20,000 WHICHEVER IS THE GREATER. 12.3. EXCEPT FOR CLAIMS ARISING OUT OF A BREACH OF PARAGRAPHS 4, 5, 8 OR 9 OF THIS MA, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFITS, GOODWILL, SAVINGS OR FOR ANY TYPE OF SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF THE OTHER INCURRING SUCH LOSS.
13.1. Entire Agreement. This MA, all Orders, any data transfer or processing agreements between D&B and Customer, any attached addendums, appendices and schedules, and any applicable online service terms in effect from time to time, constitute the entire agreement between D&B and Customer regarding the Information, Services and Software. All prior agreements both oral and written between the parties on the matters contained in this MA are cancelled, replaced and superseded by this MA. Any Order in effect at the Effective Date shall, from the Effective Date, be subject to the terms of this MA. In no event shall any Customer terms or conditions (including those in or attached to a Customer’s purchase order) apply to any Order or vary this MA. The headings in this MA are for ease of reference and shall not affect its interpretation.
13.2. Precedence. In the event of a conflict between the terms of this MA and any Order, the terms of the Order shall prevail in relation to that conflict.
13.3. Severability. If any provision of this MA or an Order shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this MA or an Order and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
13.4. Waiver / Amendment. The failure to exercise, or delay in exercising, a right, power or remedy provided by this MA, an Order or at law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this MA or an Order this shall not operate as a waiver of any subsequent breach. All rights and remedies expressly granted in this MA or an Order are cumulative and do not affect any other rights or remedies which either party may otherwise have at law. Any amendment, addendum or waiver relating to this MA or any Order must be in writing and signed by both parties.
13.5. Assignment. Neither party may assign any of its rights and/or obligations under this MA without the prior written consent of the other party, save that D&B may assign the MA (i) to any other D&B group company which controls, is controlled by or is under common control with D&B or (ii) as part of a restructuring or consolidation or the sale of substantially all of D&B’s assets. Any assignment in breach of this paragraph is void.
13.6. Force Majeure. D&B shall not be liable for any delay in performing, or failure to perform, any of its obligations under this MA or any Order if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances D&B shall be entitled to a reasonable extension of the time for performing such obligations, provided that, if the period of delay or non-performance continues for thirty (30) consecutive days, Customer may cancel the affected Order by giving not less than thirty (30) days written notice to D&B.
13.7. Notices. Save as permitted by paragraph 13.8 below, any notice, demand or other communication to be served on a party shall be in writing and may only be served by sending it by pre-paid recorded delivery, registered post or by delivering it personally to, in the case of D&B, the address specified at the top of this MA and in the case of the Customer, the address specified in the last Order placed with D&B (or such other address as a party shall have previously notified the other in writing or an applicable Order) and shall be deemed duly served two (2) business days (Monday to Friday only, excluding public holidays in The Netherlands) after posting. Any notice addressed to D&B must be clearly marked “For the attention of: The Legal Department”. In proving service of the same it shall be sufficient to prove that such notice was correctly addressed and delivered to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post letter.
13.8. Use of Email. Email may be used for routine communication and where otherwise expressly permitted in this MA or an Order, provided that such emails are sent between an authorized valid corporate email account of each party as notified by the parties to one another from time to time. For the avoidance of doubt, e-mail notices shall not amount to notice in writing or a written instrument for the purposes of paragraphs 10.3, 10.4, 10.5, 13.4 or 13.5.
13.9. Lifecycle Policy. D&B Services are subject to D&B’s Global Product and Data Lifecycle Policy, as set forth at http://www.dnb.com/product-migration-policy.html which is incorporated herein.
13.10. Third Party Rights. A person who is not a party to this MA has no right under the MA or at law to rely upon or enforce any term of this MA, except that D&B’s third party content providers are entitled to the benefits and protections of paragraphs 11 and 12 to the same extent as D&B.
13.11. Choice of Law. This MA and each Order (and any contractual and noncontractual obligations relating to or arising out of them) shall be governed by and construed in accordance with the laws of The Netherlands and both parties agree to submit to the exclusive jurisdiction of the courts in The Netherlands.